legal updates from a Tennessee commercial litigation attorney

Tag Archives: Litigation

When I first started practicing law, my mentor was a procedure savant. He knew the Rules of Procedure inside and out. In turn, I eventually learned the Rules.

That’s my single biggest piece of advice for any litigation attorney: Know the Rules of Procedure. If you’re in state court, read the Tennessee Rules of Civil Procedure. Before you go to court, read that county’s Local Rules.

The key to success at anything is knowing the rules. Sports. Checkers. The practice of law. A strong, working knowledge of the rules of procedure puts you ahead of 85% of your fellow lawyers.

Rule 54.02 applies in cases where are multiple parties and multiple claims for relief, but a party is able to resolve its claims as to part of the litigation. In that circumstance, Rule 54.02 allows the trial court deem the judgment as to that part of the case “final,” which means that the party’s appeal deadlines start to run and, more importantly, the plaintiff can proceed with collection on the judgment as to that party.

But, you don’t get Rule 54.02 relief unless you think to ask for it. Under the Rule, you have to (1) specifically request that the judgment be “final” and (2) use magic language by which the Court makes an “express determination that there is no just reason for delay” and an “express direction for the entry of judgment.”

The case I cite above is interesting, because the Judgment that was appealed included the Rule 54.02 magic language, but the Court of Appeals denied the appeal as premature, because there was still one loose end (the assessment of attorney fees). It’s interesting (and re-assuring) to see the appellate court look at substance over form.

Even though Rule 54.02 led this attorney astray, don’t forget to include that text in your Judgments. It’s most powerful when you have the chance to take a judgment against one liable party early in the case, but one of the other defendants shows up and contests his own liability. In that scenario, while you’re litigating the matter against one defendant, you can commence execution and collections on the other, without waiting until getting all the claims resolved.

No plaintiffs, however, are as eager to get to court than landlords. A common question I get is: What is the quickest court date a landlord can get?

The answer is in Tenn. Code Ann. § 29-18-117, which provides: “The officer serving the warrant shall notify the defendant of the time and place of trial, the time not to be less than six (6) days from the date of service.”

So, in order to have a valid eviction lawsuit, you have to provide–at a minimum–six days notice from the date of service of process.

Note: This timeline is for commercial property evictions. Residential evictions are governed by the Uniform Residential Landlord and TenantAct , and that is it’s own blog post.

You don’t need a law degree to know this: The tricky stuff in a contract is always in the fine print, at the end of the contract.

For instance, most good contracts will invariably include a forum selection clause. This is generally a line at the end of the “Miscellaneous” paragraph that says something like: the parties to the contract agree that any action or proceeding arising under or related to this agreement shall be filed only in the United States District Court or the state courts in Nashville, Tennessee.

Of course, forum selection clauses don’t always say “Nashville,” but they do generally list the forum in a location that is: (1) convenient to the party preparing the contract; and (2) inconvenient for the other party. It makes sense, the contract drafter says, because that company doesn’t want to open itself to lawsuits all over the country. Presented with these “take it or leave it” terms, the other party often doesn’t object, no matter how burdensome the forum would be, because a party doesn’t generally sign a contract anticipating a default.

Unless, you know, they have a lawyer review the contract and warn you about the doomsday scenario. In Tennessee, these provisions are generally enforceable, as noted in a recent Court of Appeals opinion, The Cohn Law Firm v. YP Southeast Advertising & Publishing, LLC. In that case, a Memphis-based law firm filed suit against the Yellow Pages in Memphis; in response, the Yellow Pages moved to dismiss, citing page 3, paragraph 18 (titled “Miscellaneous”) of the contract, stating that all lawsuits must be filed in Georgia. The lower court dismissed the lawsuit for lack of jurisdiction and improper venue, and the appellate court agreed.

That Court wrote that: “Generally, a forum selection clause is enforceable and binding on the parties entering the contract. Lamb v. MegaFlight, Inc., 26 S.W.3d 627, 631 (Tenn. Ct. App. 2000). A forum selection clause will be upheld if it is fair and reasonable in light of all the circumstances surrounding its origin and application. Id. (citing Dyersburg Mach. Works, Inc. v. Rentenbach Eng’g Co., 650 S.W.2d 78 (Tenn. 1983)). A party seeking to invalidate a forum selection clause must prove that the clause resulted from misrepresentation, duress, abuse of economic power, or other unconscionable means. Id.”

The Court further wrote: “Tennessee law is clear that the party challenging the enforcement of the forum selection clause “should bear a heavy burden of proof.” Chaffin v. Norwegian Cruise Line Ltd., 1999 WL 188295, *4 (Tenn. Ct. App. Apr. 7, 1999).

The Plaintiffs argued that the contract was an “adhesion” contract, i.e. a boilerplate provision that wasn’t discussed or contemplated, and the Court ultimately rejected this, since the forum selection clause wasn’t patently unfair and had a reasonable basis.

I estimate that most contracts have these provisions in them; if they don’t, they should. A good lawyer will always consider the “worst case” scenario, even at the front end of the deal. In doing that, no lawyer worth his billable hour rate will overlook the impact of a forum selection clause.

In the case, a subcontractor alleged that a general contractor was equitably estopped from denying payment of various change orders, when the general contractor waiting until the work was completed to provide notice that the extra charges would be denied.

The Court held that doctrine of equitable estoppel requires evidence of the following elements with respect to the party against whom estoppel is asserted:

Conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert;

Intention, or at least expectation that such conduct shall be acted upon by the other party; and

In an opinion issued this past Friday, the Court of Appeals revisited the statute in Capital Bank v. Oscar Brock, No. E2013-01140-COA-R3-CV – Filed June 30, 2014 (see full text here). The case followed the established precedent of Sterling Ventures and its progeny.

This new case is notable in two respects:

Courts can and will resolve §35-5- 118(c) issues at the Summary Judgment level, where it is only a matter of applying the valuations against the foreclosure bid price. In fact, this new opinion weighs some of the evidence, in finding that the defendants valuations were were “formed
months or even years before or after the time the Property was sold at foreclosure.” This was a major victory in the original Sterling Ventures case, since borrowers want to make these issues a “fact” question, forcing a trial and delay of judgent.

Courts continue to look at percentages when determining what “materially less” means. Sterling Ventures and the later opinions all say the courts want to avoid setting a “bright-line percentage, above or below which the statutory presumption is rebutted.” That has basis in the legistlative history of the statute, where the lawmakers used “material” based on its usage in child custody cases. Nevertheless, the courts continue to apply a percentage test; in this case, spread was 15.8% and the sale was upheld.

This Court shot down a number of other arguments, including: those based on the amounts of several post-foreclosure appraisals; based on the Bank’s ultimate sale-listing price; and an argument that the Bank committed “fraud” by bidding a lower amount when it planned to market the property at a higher amount.

The ultimate take-away on this remains the same as in the past.

Get an appraisal at or near the time of the proposed sale.

Bid an amount that is reasonably tied to the amount of your appraisal (or other reliable/admissible valuation).

Summary Judgment is a proper way to proceed, provided the foreclosing creditor was cautious and acted with this statute in mind.

A good rule of thumb for determining if a lawsuit has come off the rails is if one of the litigants files a Motion for the judge in the case to recuse himself. That’s a motion saying, essentially, that this particular judge is so biased against one party that the judge can’t rule fairly in the case.

I’ve been asked to file these in the past, and I always refuse because, if you attack a judge’s impartiality and you lose, then you’re stuck with that same judge.

So, I read this Tennessee Court of Appeals case from last week with some interest, because it is the first time I’ve seen the law on recusal motions spelled out with this much detail. And, of course, it’s in a divorce proceeding, where emotion runs high. (Side note: This is a completely insane divorce–login to Davidson County CASELINK and look at the pleadings. God help us all.)

In the decision, the Court focuses on whether the trial court entered the proceedings with a bias, such that it “prejudged” the litigants based on “interest, partiality, or favor” resulting “from extrajudicial sources and not from events or observations during litigation of a case.” Mere adverse rulings are not enough to justify recusal.

Nine times of out ten, a motion for recusal is filed by a party who is losing the lawsuit, and they equate the judge ruling against them as the judge being biased. This new opinion supports the position that they are not the same. Most of the time, the judge will rule against a party because they’re wrong, not because the judge doesn’t like them.

I enjoy practice in General Sessions Courts. Once you get past the utter chaos, unpredictability, and potentially long lines at the elevators, you may be able to obtain an enforceable judgment in less than 4-6 weeks after filing your lawsuit. That’s the fastest justice in the State.

Given the speed advantages, some lawyers will sue for a lesser amount to have their lawsuits heard in Sessions (i.e. the debt is $27,0000, and they sue for $24,999.99). Then, if they lose the case or if it’s appealed to Circuit Court, the lawyers know they can always increase the action to the full amount in Circuit Court.

Such amendments are allowed under Tenn. Code Ann. § 16-15-729, which says the Circuit Court “shall allow all amendments in the form of action, the parties thereto, or the statement of the cause of action, necessary to reach the merits, upon such terms as may be deemed just and proper. The trial shall be de novo, including damages.”

But, don’t think the informality of Sessions practice carries over into Circuit Court. The Tennessee Supreme Court’s opinion in Brown v. Roland, 357 S.W.3d 614, 616 (Tenn. 2012) held that a party is limited to their damages sought until and unless an actual amendment is made to the complaint.

This is an interesting case, because, by implication, an amended complaint may also be required to add parties and causes of action.

In Sessions Court, it can feel like “anything goes.” It’s not a court of record, and the Judges let litigants have some procedural leeway in presenting their claims. Under the Brown case, that leeway stops upon appeal.

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Disclaimer

The statements and opinions voiced here are my own and not of my law firm. This blog and any links have been prepared for general informational purposes and are neither legal advice nor a solicitation to provide legal services. This information is not intended to create a lawyer-client relationship, and any use of this blog does not constitute a lawyer-client relationship. You should seek counsel from a qualified lawyer for any legal issue before taking or delaying any action or making any decision, as some of the concepts discussed may be subject to exceptions and qualifications.